JOSEPH BAUER, Employee/Appellant, v. HEPPNER’S AUTO BODY and MID CENTURY INS. CO., Employer-Insurer, and MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 5, 2011
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE; TEMPORARY TOTAL DISABILITY - WORK RESTRICTIONS. Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee had reached maximum medical improvement and had no need for restrictions for the claimed period of temporary total disability.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Kathleen Behounek
Attorneys: Vincent A. Petersen, Law Office of Donald F. Noack, Mound, MN, for the Appellant. Joseph G. Twomey and Stacey H. Sorensen, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s findings that the employee reached maximum medical improvement, has been able to work without restrictions, and is not entitled to temporary total disability benefits from May 2, 2008, to December 16, 2009. We affirm.
The employee was working as a painter for Heppner’s Auto Body [the employer] on June 2, 2005, when he sustained a lateral malleolus fracture of his right ankle. The employer and insurer admitted liability for the injury.
Surgery was performed by Dr. Thomas A. Lange, on June 24, 2005, in the form of an open reduction and internal fixation of the right lateral malleolus. The employee was off work and received temporary total disability benefits from June 3, 2005, to July 14, 2005. He then returned to work as a painter, with restrictions against prolonged standing, squatting, and lifting more than fifteen pounds.
On October 20, 2006, the employee underwent surgery to remove hardware from his right ankle. When the surgical incision did not heal properly, a debridement of the incision was performed on December 12, 2006.
When seen at Dr. Lange’s clinic on January 10, 2007, the employee was started on Keflex to treat a staph infection in the right ankle, but he was released to return to work on January 15, 2007, with the recommendation that he take a 20-minute break every two hours. The relevant report of work ability form indicated that this restriction was to remain in effect until the employee was seen in follow-up in two to four weeks. The employee returned to work on or about January 20, 2007, having received temporary total disability benefits from October 20, 2006, through January 19, 2007.
The employee was seen at the clinic again on April 3, 2007. At that time, examination revealed a well-healed lateral ankle incision, the employee’s ankle was nontender to palpation, and there was no effusion. It was also noted that the employee was back to full-time work but continued to require 20-minute breaks every two hours to rest the ankle. That restriction was continued and the employee was to be seen again in six months for reevaluation.
The employee continued to work full time for the employer until he was terminated on May 2, 2008. When he returned to see Dr. Lange four days later, on May 6, 2008, the primary concern was metatarsalgia. On examination, the employee was noted to have “thickened callosity over the second metatarsal head and a rather flat foot when he stands.” Dr. Lange recommended over-the-counter orthotics with a metatarsal pad to take some pressure off the metatarsal head. The doctor noted no abnormality in the ankle and opined that “perhaps that fourth metatarsal is a little bit long and is the reason for the metatarsal callus there.” Because the employee’s work involved a lot of standing and moving, Dr. Lange suggested that the employee might benefit from surgery to permanently treat the metatarsalgia. The employee has not received treatment for his right ankle condition since that date.
On August 1, 2008, the employee filed a claim petition seeking temporary total disability benefits continuing from May 1, 2008, permanent partial disability benefits, and rehabilitation benefits.
The employee was examined by independent medical examiner Dr. Scott McGarvey on May 5, 2009. In his report, Dr. McGarvey opined that the employee had reached maximum medical improvement [MMI] from his work injury and that no restrictions were required.
The matter proceeded to hearing, and, in a findings and order filed on July 27, 2010, a compensation judge found that the employee had reached MMI from his work injury as of June 4, 2009, that he had not required work restrictions since May 2, 2008, and that he was not entitled to temporary total disability benefits from May 2, 2008, to December 16, 2009. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1 (2008). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
On the issue of the employee’s past need for restrictions on his activity, Dr. McGarvey opined that
It would be my impression that Mr. Bauer would have been unable to work for two months following the initial appropriate treatment of the fibular fracture. Following that he could enter into a full time sedentary or sitting position for approximately an additional two months. Following completion of physical therapy during that period of time he would most likely be able to return to work initially for one month on a light duty basis progressing to full time duty without restrictions.
On appeal, the employee argues that Dr. McGarvey’s opinion in this regard makes no reference to the difficulty the employee had following his initial surgery, the subsequent surgery to remove the hardware, or the third procedure to deal with the infection, contending that Dr. McGarvey instead used “boilerplate restrictions that had no resemblance to the employee’s actual condition.” However, Dr. McGarvey’s report clearly references, in the history section, the problems that the employee had after the first surgery and his resulting need for the subsequent surgical procedures. A compensation judge’s choice between expert opinions is generally upheld unless the expert’s opinion is based on facts not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee points to no specific facts that were assumed by Dr. McGarvey that were not supported by the evidence.
The employee also contends that the judge erred in relying on the opinion of Dr. McGarvey because his opinions lacked foundation. We are not persuaded. Dr. McGarvey reviewed the employee’s medical records, examined the employee, and took a medical history from him. As such, he clearly had adequate foundation for his opinion. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).
The employee further contends that Dr. McGarvey’s conclusion that the employee has some instability in his ankle, ratable permanent partial disability, and needs monitoring on a yearly basis to evaluate arthritis is not consistent with his conclusion that the employee requires no restrictions. We see no inconsistency. The permanency rated by Dr. McGarvey was based on a lateral malleolar fracture that the doctor opined “has healed.” And, while Dr. McGarvey diagnosed “mild syndesmotic instability,” he further opined that the instability “is not of a nature that restrictions are required.” Finally, the doctor’s recommendation that the employee be followed over the next ten years was due to concern for “possible progression of posttraumatic arthritis.” (Emphasis added.) Dr. McGarvey adequately explained why he did not recommend restrictions for the employee as of the time of his examination.
The employee further contends that the compensation judge erred by assuming that formal restrictions from a doctor are necessary to establish residual disability. We are not persuaded that the judge made this assumption. Certainly the failure of a treating doctor to render a recent opinion as to restrictions is evidence that a compensation judge may rely upon in evaluating an employee’s claim of ongoing disability. In the instant case, no doctor recommended restrictions on the employee’s activities after April 7, 2007, and the restrictions recommended on that date were to be reviewed within six months. While the employee returned to Dr. Lange in May of 2008, the doctor did not treat his right ankle or make any mention of the need for restrictions, related to his ankle, at that time. The employee testified that, when he was terminated by the employer in May of 2008, he was working within the restrictions recommended in 2007 and that he assumed that those restrictions were permanent. However, the employee offered no testimony of having experienced ongoing symptoms that would have warranted ongoing restrictions.
The employee also contends that the judge’s finding that the employee reached MMI in December of 2006 is completely contrary to the medical record, in that there was fluid in the subcutaneous tissues in his ankle at that time. He also argues that MMI cannot be found when surgery is pending. Again, we are not persuaded.
MMI is defined at “the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical improvement.” Minn. Stat. § 176.011(25). Factors to be considered in determining whether MMI has been reached include the employee’s history of improvement, current treatment, preexisting conditions, and proposed future treatment. Mundy v. American Red Cross, slip op. (W.C.C.A. Aug. 29, 2000).
We note initially that the judge found that the employee had reached MMI as of June 4, 2009, with service of the MMI report, not December of 2006, as alleged by the employee. The employee has not treated with any doctor for his right ankle fracture and he did not testify to any improvement in his right ankle after June 4, 2009. Furthermore, no future treatment has been proposed, other than the surgery mentioned by Dr. Lange for treatment of the metatarsalgia, which no doctor has causally related to the employee’s right ankle fracture.
Substantial evidence supports the judge’s finding that the employee has not required restrictions since May 2, 2008, that he has reached MMI, and that he is therefore not entitled to temporary total disability benefits for the period claimed. We therefore affirm the judge’s findings and order in their entirety.
 The employee cites several cases indicating that, absent any formal restrictions on an employee’s activities, a compensation judge may rely on the employee’s testimony or other evidence to support a finding that the employee is subject to limitations on his ability to work. These cases are not determinative, however, as they were all affirmances of decisions by judges who relied on an employee’s testimony. Our holding in each case was only that a compensation judge may rely on such evidence, not that he or she must.
 The employee described one incident in the fall of 2009 when he felt the need to elevate and ice his ankle after having been on his feet for four or five hours.
 The only doctor to opine that MMI had not been reached was Dr. Lange, back in June of 2008. However, no doctor, including Dr. Lange, has treated the employee’s right ankle since that time.